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[untitled]

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00:30:00

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Channel 89 (615 MHz)

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mpeg2video

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ac3

PIXEL WIDTH
528

PIXEL HEIGHT
480

TOPIC FREQUENCY

Walsh 2, Unt 1, The Palm 1, San Francisco 1, Or Revocations 1, Honda 1, Mr. Horcher 1, Hwang 1, Hurtado 1, Fung 1, Lazarus 1,
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  SFGTV    [untitled]  

    January 21, 2013
    8:00 - 8:30am PST  

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>> in addressing the severity of the penalty, in fact, under the law, under both the ordinance and the regulations, the only penaltis that require a showing of prior violations in order to increase are the administrative fines. from the very first infraction the department of public health has the discretion to revoke a massage permit. the fact it hasn't in this case despite repeated violations, discovered both by the public health inspectors and in operations with the police is a gift. it is a gift from the department of public health that that permit will still exist after this hearing, if the decision here is upheld. i really don't think there is any ground to reduce the penalty. i think if anything, the penalty is still quite gracious.
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you have a repeat violator in front of you. she is unpreentent and keeps doing it. the attempts to nit pick with the hearings and was everything that we did absolutely perfect? no, but that is not the standard. she certainly had a fair hearing. she certainly had an opportunity to present her case to dph and if she didn't, she certainly had that unt opportunity and more before you. i don't think there is any grounds to overturn the hearing officer's decision and i hope you agree. >> thank you >> are you aware of any other suspensions? how often do these type of establishments have violations and is there a normal standard of suspension or track record? >> i'm not prepared to talk
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about all of dph's massage cases. i am prepared to talk about this one. i can have ed walsh talk about that one. he is the inspector. >> okay. >> would you like him to? >> if he is able to answer that question. >> are you? >> yes. >> good evening commissioners. i'm ed walsh, i'm the senior environmental health inspector of the massage program for about 8.5 years. i have 28 years' experience as being a city employee with the city and county of san francisco, as a health inspector. regarding penalties for violations, we have a number of violations that we look for, and we fine people or suspend permits. most common violations are practitioners without proper
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attire, practitioners that don't have licenses and for violations of employeing unlicensed practitioners. those violations usually incur a fine of maybe $1,000 at the first offense and goes all the way up to $5,000 for the third repeat offense. in the two-year period, we keep track of those violations and when we find them, we bring them to the hearing, and appropriately request those penalties. in the case of illegal activities such as prostitution, the fines are a little more stringent and it gives us the opportunity to suspend or revoke permits, if there is prosecution. i'm here to answer questions
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>> my question is how often are suspensions given for these? >> probably in the last year or so, this is the first one we have suspended this year. we have closed a lot of facilities for operating without permits. but as far as suspensions, or revocations, this year, this would be the first one. >> for 2012? >> for 2012, i believe there was probably one also. >> and how long was that suspension for? >> i think mr. horcher was referring to the palm tree. i think that was for prostitution and that was originally it was a 30-day suspension. >> okay. thank you. >> thank you. counselor, i had a question for you. you do not or maybe you do. do you dispute the case history against this establishment in terms of what had been --
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which cases have been thrown out and which ones have been carried forth? he indicated the three in his brief, the previous years. >> in terms of the police reports? >> yes. >> actually, i don't take a position on that, because i did not run those down. and the reason was that his argument in that case was that you had to prosecute a case all the way to conviction for it to count. and that is actually not the legal standard. and so i didn't -- i didn't spend my resources tracking down the ultimate disposition of those cases. it is enough for the hearing officer to find that those prior violations occurred regardless of whether or not they eventually led to a conviction. and the hearing officer could properly make that finding based on the sworn police report in front of him.
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there is case law clearly on point that says that is an appropriate basis and substantial evidence for administrative fact-finding, both the sworn declaration of the police officer and the police officer relating the testimony of other people who had been in the vice team who also participated. so can i say for sure what happened in those cases? no, i can't, but there is no indication that the factual predicate was wrong. it was proper. >> statement sorry, one last question. was there a fine that was levied towards the ceo? >> yes, there is a $2500 fine being levieed >> thank you.
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>> thank you. commissioners barring any further questions, the matter is submitted. >> might i make clear to the commissioners what is before you tonight is the permit itself. but the board has not given you jurisdiction over the fee part of this. so it's really the suspension of the permit that you get to decide on. >> thank you. >> and also, just for clarification, we have no jurisdiction to reduce the penalty? >> right. >> that is correct. up or down? >> i'm sorry, clarification. >> there is no reduction. we have no authority up or down? >> you can modify it. >> yes. you can modify the suspension, but not the fee, the fine, the money. >> thank you. earlier i misunderstood.
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thanks. >> i mean, are we having conversation? >> yes, please >> looking and going over the file, evidently, this is not the first or the second, or the third. but the reason why i asked for previous background regarding suspensions is that is somewhat of a standard that has been set to follow along with what has been given in the past. i don't know regarding, i guess, the three palms or six palms, how many times they had been caught for violations. so i'm not sure if we go from 30 to 90, if that is appropriate, or if it is appropriate, that is my feeling. and so i'm not sure. i will leave it to the rest of the commissioners for me to hear some more dialogue. >> i think my issue is sort of
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recidivism issue. so 90-day suspension is not a year. it's into not a revocation. it's somewhere in between. i find persuasive the briefing of the city attorney on the notice issue, as well as uncompelling the briefing on the jurisdiction issue on the part of the appellant. as far as the penalty itself, my generinclination is to uphold as it is. >> i would agree with that. i feel there have been multiple efforts to try to stall on this, to somehow set up a case where there wasn't going to be jurisdiction. i believe the deputy city attorney forewarned us about that at the last hearing. i think we were generous in
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allowing this case to be delayed for change of counsel and proper briefing. but i continue to be persuaded by the facts and what i have read, that this is a series of violations and this is an appropriate suspension. >> okay.it's interesting in terms of history, because this board back in the '80s, every meeting there would be a suspension or a revocation case related to a massage establishment? >> when was this. in the '80s and mimes more sometimes more than one. i don't know if the numbers has gone down or they are obeying the law more. >> you did your job in the '80s. >> the question here, i don't
8:11am
think there has been a lot of dispute over the incidents. there is probably some dispute over the exact happenstance over the more serious incident and therefore, i accept that there has been a number of issues here that warrant some level of penalty. the contrary side to that is the fact that there were some due process issues. one in terms of the 20 days. and i was also not overly impressed by the nature of the hearing process that i read in the transcript. it was not very well-done and i didn't think it was just an issue of language, but what i read into statements. how people were directed. how they were allowed -- and i didn't find it very appropriate
8:12am
to a city agency in terms of how we deal with our citizens, no matter how guilty they may be. so i would probably, based on that, as a counter, and i don't disagree that they have found significant incidents that warrant penalty, but i would reduce the penalty, just because of the due process issues. >> what is your proposal? >> i would reduce it to 30 days. >> you want to bargain 60? >> split it at 45? >> i could get behind 60. >> split it or 60? >> 60. >> i'm comfortable with 60. >> i'm comfortable with 90, but i'm go to 60. >> i accept. i would move to uphold the
8:13am
appeal and reduce the penalty to 60 days suspension. do you need findings? >> would that be on the basis? >> on the basis that the notice was faulty. >> okay. >> i can't get behind that basis actually that the notice was faulty. >> what would you? >> i would say that there were questions raised regarding process at the hearing level, but not notice. >> all right, due to questions related to process. >> okay. we have a motion from commissioner fung. to grant this appeal and reduce the suspension from 90 days to 60 days on the basis of
8:14am
questions related to the process at the departmental hearing. >> yes. thank you. >> on that motion to reduce president hwang? >> aye. >> and commissioner hurtado is absent. vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 4-0 and the suspension is reduced to 60 days. >> there is no further business. >> thank you, this meeting is adjourned.
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